First, it declares that the Spanish government’s position is legitimate:

The SNP Scottish government states that:

1. The Catalan and Spanish governments are perfectly entitled to take positions for and against independence.

It then qualifies its stance by adding an ethical condition:

2. All peoples have the right to self-determination, a principle which is enshrined in the UN Charter.

Before ending its statement:

3. Pointing to the Scottish example, in which the two parties reached an agreement allowing for a referendum to be called.

———————–

The statement made for several headlines in the major news media (for example) even though the Scottish government’s support for Catalonia’s right to self-determination was not just predictable but downright self-evident.

Not so expected maybe was its acknowledgement, right at the top of its statement, of the Spanish government’s right not to accept a referendum.

Madrid lost no time in issuing an official response, but when it did so, it failed to comment on one of the central arguments put forward in the statement (more below).

The Spanish government’s stance:

“Spain cannot apply the United Kingdom’s solution for the Scottish issue: our historical origins and our legal-political systems are different. The Spanish constitution enshrines the Spanish nation as a political and social reality prior to the constitution itself”.

“Spain has a written constitution, submitted to the vote of all Spaniards in 1978 and approved by 87.7% (and 91.4% of the Catalonian voters), which makes the rules of the game clear”.

“A referendum in the form proposed by the United Kingdom to Scotland would only be possible if the constitution were amended.”

“The British case is an exception to an overwhelming majority of written constitutions that do not recognise this possibility. Recent judicial decisions in Germany and Italy have underlined the same constitutional approach as Spain. More concretely, according to Germany’s Supreme Court, there is no room under the constitution for individual states to attempt to secede” (1).

We could also add the decision of the Alaska Supreme Court, which asserted that secession was clearly unconstitutional and not a suitable subject for a ballot initiative (2.a), insisting that the constitution can only be changed according to the procedures set out in the constitution itself (2.b). Precisely the self-same stance as the Spanish government’s.

Or on a different tack, but still concerning secession, we have the precedent of the Swiss Confederation, for many the paradigm of decentralised rule, where civil war ensued in 1847 when the cantons in the north-east of the country tried to secede. This led to the end of the hitherto quasi-independence of the cantons and paved the way for the federal state we know today (3).

All this is good and well, but it could still be argued that the Spanish government disregarded a core issue in its response:

THE ETHICAL ISSUE: THE SELF-DETERMINATION OF PEOPLES

What is the code of conduct for such situations?

The second point in the Scottish government’s statement centres on this question: the right of peoples to self-determination, as enshrined in the UN Charter, concretely in Articles 1, 55 and 76 (4).

Several United Nations documents, however, clearly state that the right to self-determination does not embrace the right of secession.

The most important of these are the texts produced at the organisation’s founding conference in 1945. These documents, which espoused the self-determination of peoples as one of the principles of international law, contain two categorical references which specify that the right to self-determination does not encompass the right of secession (reference 5 and table 1, quotations 1 and 2).

Another is the 1970 Resolution of the Assembly General on principles of international law, which sets out that the right only applied in order to end European colonialism at the time (6 and table 1, quotation 3).

Written up in 1981, “The right to self-determination: historical and current development” is a more recent and detailed document which reviews and compiles UN jurisprudence focusing on the right to self-determination. This document states on eight separate occasions that the right to self-determination does not grant the right of secession (7 and table 1, quotations 5-12).

UNAVOIDABLE CIRCUMSTANCES

Because law is so closely tied to social organisation and history, it is necessary to highlight the context in which the right to self-determination was established in international law.

When the United Nations asserted the right to self-determination in 1945, World War II had only just finished.

The conflict had claimed more than 50 million victims, two-thirds of whom were civilians, and involved dozens of nations, including the most powerful countries in the world.

None of those attending the founding conference of the United Nations needed to be reminded what had been to blame: the expansive nationalism of Germany, Italy and Japan.

The war brought an end not only to these three countries’ imperial delusions but also, crucially, to five centuries of conquest and expansive colonialism throughout the world at the hands of European powers.

It was to bring this state of affairs to an end -and for this reason alone- that the United Nations adopted the right to self-determination.

Colonies in 1945. The map could also include the USSR and its control of Mongolia, and Denmark and its possessions in Greenland and other territories. Source: Wikipedia

For all the reasons given, we can therefore conclude that:

The SNP Scottish government’s announcement claiming that Catalonia is entitled to self-determination according to a principle established in the UN Charter has no legal basis

because the UN explicitly states that the right of peoples to self-determination enshrined in its founding charter does not embrace but repeatedly and categorically denies the right to secede.

UNFORTUNATELY, THAT IS NOT ALL

The three documents cited (Table 2, quotations 1 and 3-12), along with a fourth, the Declaration of the General Assembly of 1960 on the granting of independence to the colonial countries and peoples (8, Table 2, quotation 2), state eleven times what should be obvious: that the right to self-determination cannot be used for, and I quote literally, the “amalgamation of nationalities” (8, Table 2, quotation 1).

The founding assembly of the United Nations used none other than the cases of Germany and Italy, when their nationalist movements tried to amalgamate their nations under this principle before and during World War II, to support its arguments (5 and Table 2, quotation 1).

In this regard, it is necessary (and disagreeable, please read the footnote) to recall that the first item on the programme of the National Socialist German Workers’ Party demanded the unification of all Germans, then as now spread across a number of European countries, within one Greater Germany on the very basis of the right to self-determination (9).

The United Nations’ legal principle of the right of peoples to self-determination has, since its inception, also emphatically proscribed any interference in the integrity of nations.

It goes without saying that the Catalan (and Basque) nationalist movements are in clear breach of this aspect of the legal principle.

The manifestos of both Esquerra Republicana de Catalunya (Republican left of Catalonia), the majority nationalist party, and Candidatura de Unidad Popular (Popular Unity Candidacy) highlight and go to certain lengths to outline the creation of a greater Catalan nation, which they call the Catalan Countries, encompassing the Balearic Islands, Valencia and the south-west of France (10 and 11).

This vision has also formed an unvarying part of the propaganda, education, cultural and economic policies of Convergència i Unió (Convergence and Union), now Partido Democrático de Cataluña (Catalan Democratic Party), ever since it rose to power in 1980.

Just take a look at the weather forecasts, which, without so much as a blush, show the Balearics, Valencia and the south-west of France, but ignore the rest of Spain (12).

Misleading (12) linguistic map and political goal of the Catalan nationalists since time immemorial. Spain has no place here.Common graffiti in Catalonia: “For the unity of the language and the Catalan countries”

The stern condemnation of expansive territorial ideals like these by the UN’s member nations has been explained in some detail above.

By their very definition, ideals come from within people.

But ideas exist to represent reality. Not to imagine it.

Having delved into this now age-old subject in order to inform myself and shape an opinion, I am shocked. By both: reality and ideals.

And, now that the debate is raging, I fail to understand why so little is being said about this aspect of the Catalan nationalist ideology.

Explanatory Note:

The risk of distortion is always huge whenever Nazism is cited.

Such references are often dismissed because of their maximalist or trivial connotations.

On the one hand, they can be taken as accusations of fresh atrocities comparable in magnitude to those of Hitler, rather than as warnings of the flaws inherent in some ideas and the kind -not the scale- of consequences these are likely to have.

On the other, people may feel you are trivialising the true significance of Nazism, as occurs when the term is thrown around in a heated argument.

Using the term at the risk of coming across as slighting the suffering of so many victims always fills one with a measure of apprehension.

This said, holding some issues up against the light of Nazi ideology sometimes helps to clarify things.

I think it is important to highlight the similarities between the principles of the German National Socialist party, the policies regularly proposed in Esquerra Republicana’s and Candidatura de Unidad Popular’s election manifestos, and the established objective of all Catalan nationalist governments since 1980.

The programmes and policy actions of the pro-Catalan independence forces invoke the right of peoples to self-determination in order to forge a new entity called the Catalan Countries.

Perhaps this ludicrous aspiration is the result of a failure to adapt pro-independence thought, rooted in the 19th century, to the present day. Or it could be that the independence movement, which until just five years ago had never really caught the imagination of the broader public, has never had to think too much about it. Or maybe this is just the internal logic of its nationalist ideology.

Whatever the case, we should not downplay these unacceptable proposals to “amalgamate nations” on the basis of language or, more importantly, the consequences which similar aspirations have had in recent history, both in the 20th century, in the case of Germany, and since the dawn of the new millennium, with the terrible collapse of the Yugoslav nation. This nation was also based on a common language: Serbo-Croat, also known as Bosnian, Serbian, Croatian or Montenegrin depending where a specific variant is spoken (13).

For these reasons, I believe that, in this case, it is not only important but essential that we cite the Nazi ideology in order to avoid -the objective of UN resolutions since 1945- any more instability, suffering and, in an extreme case, violence.

Article 1: “To develop friendly relations among nations based on respect for the principle of… self-determination of peoples”

Article 55: “…[to create the] conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”

Article 76: “The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter, shall be:.. to promote… their progressive development towards self-government or independence”

6.United Nations. Resolution 2625 (XXV) Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the’ Charter of the United Nations. http://www.un-documents.net/a25r2625.htm

13.Alexander, R., 2006. Bosnian/Croatian/Serbian – A Grammar with Sociolinguistic Commentary. The University of Wisconsin Press

QUOTATIONS AND SOURCES

Table 1. Application and subject of the right of secession

Quote no

Tex

Source

1

… that the principle conformed to the purposes of the Charte only insofar as it implied the right of self-government of peoples and not the right of secession

Documents of the United Nations Conference on International
Organization. 1945., G/29 (I/1/16, vol.VI, p. 296)

2

The view was expresssed… that the simultaneoous use of hte words “nations” and peoples seemed to introduce the right to secession and that it would have been more approopiate to use only the word ¨peoples¨

Documents of the United Nations Conference on International
Organization. 1945. G/29 (I/1/19, vol.VI, p. 703-704)

3

By virtue of the principle of equal rights and self-determination
of peoples enshrined in the Charter of the United Nations, all
peoples have the right freely to determine, without external interference,
their political status.. To bring a speedy end to colonialism, having due regard to the
freely expressed will of the peoples concerned.

Resolution 2625 (XXV) Declaration
on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance
with the’ Charter of the United Nations. 1970.

4

The principle of equal rights and self-determination,
as laid down in the Charter of the United Nations,
does not grant an unlimited right of secession to populations
living in the territory of an independent sovereign
State, and such a right cannot be regarded as a provision of
lex lata.

United Nations. Cristescu A. 1981. The right to self-determination: historical and current development on the basis of United Nations instruments. Párr. 173

5

The right of secession unquestionably exists, however, in a special, but very
important case : that of peoples, territories and entities subjugated
in violation of international law.

United Nations. Cristescu A. 1981. The right to self-determination: historical and current development on the basis of United Nations instruments. Párr. 173

6

Moreover, the international community is mature enough
now to be able to distinguish between genuine self-determination
and self-determination used to disguise an act of
secession.

United Nations. Cristescu A. 1981. The right to self-determination: historical and current development on the basis of United Nations instruments. Párr. 173

7

The principle of equal rights and self-determination
of peoples should serve to unite peoples on a voluntary and
democratic basis, not to break up existing national entities…

United Nations. Cristescu A. 1981. The right to self-determination: historical and current development on the basis of United Nations instruments. Párr. 209, p.30.

8

It is with this intention that the right of peoples to
self-determination has been written into international instruments,
not in order to encourage secessionist or irredentist
movements.

United Nations. Cristescu A. 1981. The right to self-determination: historical and current development on the basis of United Nations instruments. Párr 228, p. 32.

9

Nevertheless, the application of the principle to all peoples should not be
interpreted as an encouragement to secessionist or irredentist
movements.

United Nations. Cristescu A. 1981. The right to self-determination: historical and current development on the basis of United Nations instruments. Párr. 268, p. 39.

10

The view has also been expressed that the sole
beneficiaries of equal rights and self-determination should
be peoples which are under colonial or foreign domination

United Nations. Cristescu A. 1981. The right to self-determination: historical and current development on the basis of United Nations instruments. Párr. 274, p. 40.

11

Improperly understood, this right could
also lead to the encouragement of secessionist movements
in the territory of independent States, where any group
whatsoever might believe that it had an immediate and
absolute right to create a State of its own. No State, whether

United Nations. Cristescu A. 1981. The right to self-determination: historical and current development on the basis of United Nations instruments. Párr. 275, p. 40.

12

It was with this in mind that the right to self-determination
was incorporated in international instruments, and not with
a view to encouraging secessionist or irredentist movements
or foreign interference and aggression.

United Nations. Cristescu A. 1981. The right to self-determination: historical and current development on the basis of United Nations instruments. Párr. 692, p. 119.

Table 2. On the prohibition against annexing or interfering in the integrity of other countries

Quote no.

Text

Source

1

…thus to avoid cases like those alleged by Germany and Italy. That the principle as one whole extends as a general basic conception to a possible amalgamation of nationalities if they so freely choose

Documents of the United Nations Conference on International
Organization. 1945. G/29 (I/1/19, vol.VI, p. 703-704)

2

All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity

Declaration on the Granting of Independence
to Colonial Countries and Peoples. General Assembly
resolution 1514. 1960, (XV) Septima declaración.

3

“Nothing in the foregoing paragraphs shall be construed as authorizing
or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States
racial, ethnic or religious group had the right to self-determination
would be to widen the scope of the principle to the point of absurdity.”

Resolution 2625 (XXV) Declaration
on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance
with the’ Charter of the United Nations. 1970.

4

… wich avoid cases of hte alleged expression of the popular will, such as those used for their own ends by Germany and Italy in later years

Documents of the United Nations Conference on International
Organization, G/29 (I/1/34, vol.VI, p. 455)

5

It is the duty of all States to refrain from any
action aimed at the partial or total disruption of the national
unity and territorial integrity of another country

United Nations. Cristescu A. 1981. The right to self-determination: historical and current development on the basis of United Nations instruments. Párr. 172, p.26.

6

A right of secession supported or encouraged by
foreign States would clearly be in glaring contradiction with
the respect for territorial integrity on which the principle of
sovereign equality of States is based. It

United Nations. Cristescu A. 1981. The right to self-determination: historical and current development on the basis of United Nations instruments. Párr. 173, p.26.

7

A State should refrain from any action aimed at
the partial or total disruption of the national unity and
territorial integrity of any other State.

United Nations. Cristescu A. 1981. The right to self-determination: historical and current development on the basis of United Nations instruments. Párr. 174, p.24.

8

It should not be
applied in conjunction with the principle of sovereign independence
in such a way as to cause the disruption of
national unity and territorial integrity. Every State has the
duty to refrain from any action which could have such a
result.

United Nations. Cristescu A. 1981. The right to self-determination: historical and current development on the basis of United Nations instruments. Párr. 209, p. 30.

9

Nevertheless, the application of the principle to all peoples should not be
interpreted… as justifying activities aimed at changing
a country’s system of government.

United Nations. Cristescu A. 1981. The right to self-determination: historical and current development on the basis of United Nations instruments. Párr 268, p. 39.

10

Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.
interpreted… as justifying activities aimed at changing
a country’s system of government.

Declaration on the Granting of Independence
to Colonial Countries and Peoples. General Assembly
resolution 1514. 1960, (XV) Sexta declaración.

11

All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity

Declaration on the Granting of Independence
to Colonial Countries and Peoples. General Assembly
resolution 1514. 1960, (XV) Septima declaración.